R v Matheson; ex parte Attorney-General of Queensland [1997] QCA 410 (14 November 1997)

Last Updated: 27 April 2016

IN THE COURT OF APPEAL [1997] QCA 410

SUPREME COURT OF QUEENSLAND

C.A. No. 340 of 1997

Brisbane

[R. v. Matheson; ex parte A-G]

THE QUEEN

v.

DAVID ALLAN MATHESON

Respondent

EX PARTE ATTORNEY-GENERAL OF QUEENSLAND

Appellant

Davies J.A.

de Jersey J.

Muir J.

Judgment delivered 14 November 1997

Judgment of the Court

APPEAL AGAINST SENTENCE DISMISSED.

CATCHWORDS: CRIMINAL - Attorney's appeal against sentence - respondent convicted of breaking, entering and stealing, housebreaking and arson - Attorney contended that sentence inadequate - whether a sentence of seven years imprisonment with a recommendation for eligibility for parole after three years of that term is manifestly inadequate.

R. v. Colombo C.A. No. 503 of 1994, delivered 4 April 1995

R. v. Hadden C.A. No. 198 of 1996, delivered 31 July 1996

R. v. Morris C.A. No. 17 of 1996, delivered 22 February 1996

R. v. Shearer C.A. No. 130 of 1996, delivered 5 June 1996

R. v. Sica C.A. No. 239 of 1993, delivered 8 October 1993

R. v. Smerdon C.A. No. 258 of 1996, delivered 12 November 1996

R. v. Toms C.A. No. 138 of 1996, delivered 21 June 1996

R. v. Zuvela C.A. No. 393 of 1995, delivered 23 November 1995

Counsel: Mrs. L. Clare for the appellant

Mrs. K. McGinness for the respondent

Solicitors: Director of Public Prosecutions (Queensland) for the appellant

Legal Aid Queensland for the respondent

Hearing Date: 28 October 1997

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 14 November 1997

The respondent was convicted in the District Court after a trial on 7 August 1997 on one count of breaking, entering and stealing and one of arson, both on 4 October 1996. He was then convicted a few days later on his own plea on four counts of breaking, entering and stealing, four of stealing and two of house breaking between July 1995 and September 1996. On 12 August he was sentenced to two years imprisonment on each of the counts of breaking, entering and stealing and each of the counts of house breaking and 12 months imprisonment on the stealing count, all of those sentences to be served concurrently; and he was sentenced to five years imprisonment, cumulative upon those sentences, in respect of the arson count. The learned sentencing Judge then made a recommendation that the respondent be eligible for parole after serving three years of the sentences which he imposed. He also declared that a total of 312 days was imprisonment served under the sentences which he had imposed.

The respondent is 28 years of age having been born on 18 February 1969. He had been convicted in June 1996 of false pretences, wilful damage to property and unlawful use of a motor vehicle with a circumstance of aggravation for which he had been fined. These offences were committed during the period in which the offences the subject of his guilty pleas were committed. He had a dangerous driving conviction for which he had been fined in 1994. But he had no other convictions. He had not therefore previously been sent to gaol. However it is of some significance that his criminal conduct continued notwithstanding his conviction in June 1996.

By far the most serious offence here was the arson. The respondent broke into a carpet store and stole five rugs. He later returned, plainly with the intention of destroying the premises, and set fire to them. Although his intention appears to have been mainly to destroy evidence of his presence there, he was still on the scene when the fire brigade arrived which may indicate, as the learned sentencing Judge thought, some sense of gratification from lighting fires. The consequences of the arson were serious economically. The fire destroyed the premises of the carpet business and also those of an ice works situated in the same building. Both were sources of employment in Bundaberg where they were situated. Damage to the carpet business alone was in the vicinity of $1M.

The earlier offences involved a series of professional break-ins over an extended period, total property stolen being over $80,000 of which under $20,000 worth was recovered. The respondent was, in effect, carrying on a business of breaking, entering and stealing over this period. Although the respondent pleaded guilty to these offences the pleas did not indicate any remorse although he did plead to the more serious of alternative charges. The learned sentencing Judge was right in thinking that he should make some allowance for those pleas. His parole recommendation shortened his parole eligibility date by six months. The whole of this must be attributed to the offences the subject of the guilty pleas for there was no justification for a recommendation in respect of the other offences.

It was contended for the Attorney, as it had been contended by the prosecutor below that the sentence of five years for the arson was too low as were the sentences imposed for what was, in effect, the carrying on a business of breaking, entering and stealing over a period of 14 months. Mrs. Clare, who appeared for the Attorney, submitted that a sentence of eight years would have been appropriate for the arson and a term of four to five years for the other offences. She then submitted that, having regard to the totality principle, the overall sentence should have been ten years.

In considering the arson it should be borne in mind that this was deliberate and premeditated; and the appellant showed a callous disregard for those who might be affected economically, psychologically and even physically. A nearby house had to be evacuated and, of course, there was the risk that those who attempted to put out the fire might be endangered. And there were the serious economic consequences to which we have referred.

Those aspects of the arson offence are important as is the professionalism of the business of breaking, entering and stealing carried on over a substantial period by the respondent and the total value taken. On the other hand the respondent is still a young man and, before his present convictions, he had not previously been sent to gaol. He also had a recent history of stable employment. Notwithstanding the seriousness of the offences for which he was sentenced those factors indicate that there are still reasonable prospects of his rehabilitation and the learned sentencing Judge may well have had in mind the effect which a long sentence, when imposed for the first time, might have on impeding those prospects. His Honour referred to the totality principle but it is otherwise unclear how he arrived at sentences of five years for the arson and two years for the housebreaking.

The cases cited to this Court did not, on the whole, support Mrs. Clare's contention for a sentence of eight years for the arson. She relied principally upon R. v. Campbell, a District Court sentence imposed on 29 August 1996. That was a sentence of nine years with a recommendation for parole after three and a half years, the recommendation being made because of an early plea of guilty. The nine year sentence was imposed for five counts of arson which resulted in destruction of a substantial part of the business district of Beaudesert. The magnitude of those offences and consequently of the criminality involved in that case was very much greater than this.

The other cases relied on on behalf of the Attorney for this contention were Sica C.A. No. 239 of 1993, Morris C.A. No. 17 of 1996 and Toms C.A. No. 138 of 1996. Sica was sentenced to nine years imprisonment for seven counts of arson. He was part of a gang which embarked on planned acts of destruction including, importantly, burning down a police station and an attempted burning of another. As in this case there was a large number of other offences; six of wilful damage, five of breaking, entering and stealing, seven of breaking and entering with intent and five of unlawful use of a motor vehicle. As the sentences which were imposed for those offences were imposed concurrently the sentence of nine years represented a sentence for the overall criminality of these offences. The appellant had previous convictions for similar offences. The arson in that case was more serious than in this and the sentence was imposed, as we have said, for the overall criminality of the offences committed. However the offender was only 20. It does not support a contention for an eight year sentence for arson in this case..

Morris received a sentence of seven years imprisonment for arson but again this involved a police station, the purpose of the arson being to destroy evidence compiled against him. He was sentenced to three years for destroying evidence but that was ordered to be served concurrently so that, again, the seven year sentence was the effective sentence for the overall criminality which included, as well, several other offences. He had a serious criminal history including a conviction for murder so presumably he was on parole when he committed these offences. It does not support the Attorney's contention either.

Toms received sentences of seven years for arson and seven years for attempted arson. However they were to be served concurrently and concurrently with sentences for a number of other offences which included attempted armed robbery, two offences of breaking and entering with intent, two of breaking, entering and stealing, one of attempted breaking and entering with intent, one of unlawful use of a motor vehicle and one of stealing. The seven year sentence was therefore the effective sentence for all of these offences. The arson involved, as this did, ransacking commercial premises and then setting fire to them. As in this case it caused loss of substantial premises as well as the interruption of a continuing business. The attempted arson involved setting fire to part of a hostel for handicapped people after ransacking part of it. On the same night he broke and entered a school and, after ransacking it, lit a fire there. The appellant was on parole for an offence of manslaughter and on bail in relation to some offences when he committed the arson and attempted arson. Having regard to the appellant's previous criminal history, which included other offences, and the fact that the sentence imposed in that case was the effective sentence for all offences it does not support the Attorney's contention here.

On the other hand the respondent relied on Zuvela C.A. No. 393 of 1995 in which a four year sentence for arson was not disturbed on appeal to this Court by the offender. The appellant had lit a number of fires in a building of his former employer causing damage of approximately $1M. The appellant who was quite young nevertheless had a substantial criminal history and the sentence, as is in this case, was imposed after a trial. The sentence was low and the appeal was unduly optimistic. The sentencing Judge who imposed that sentence must have been strongly influenced by the appellant's youth.

The other sentences referred to above, notwithstanding their lack of comparability with the present case either because of greater criminality or because of a sentence imposed effectively for the totality of criminal conduct including arson, do indicate that the sentence imposed here for the arson was low. Had he been sentenced for that offence alone he would probably have received a sentence longer than five years. But a sentence of five years might not, in that event, have been overturned on an Attorney's appeal.

In support of her contention that four or five years would have been an appropriate sentence for the offences to which the respondent pleaded guilty Mrs. Clare referred us to Smerdon C.A. No. 258 of 1996, Shearer C.A. No. 130 of 1996 and Hadden C.A. No. 198 of 1996. Smerdon was convicted after a trial on five counts of stealing, five of receiving, twelve of breaking and entering and stealing one of housebreaking and one of possession of housebreaking instruments in the nighttime. He was sentenced to four and a half years imprisonment and this Court refused an appeal by him against that sentence. The appellant in that case had a system of breaking and entering display homes as well as industrial sites and schools. He used two rented storage sheds in which to house his stolen goods. He had only a minor previous criminal history.

Shearer was sentenced to a total of four years imprisonment for 11 counts of housebreaking, 14 of stealing, three of receiving, three of breaking, entering and stealing, one of breaking and entering with intent, 17 of attempted breaking and entering with intent and three of attempted housebreaking. In all there were 52 counts to which the appellant pleaded. His guilty plea and some personal factors resulted in a recommendation for parole after 18 months. Shearer's appeal to this Court was dismissed.

In Hadden the appellant was sentenced to four years imprisonment for two counts of stealing, one of entering a dwelling house with intent, two of receiving, two of false pretences and one of housebreaking. The sentence of four years was imposed for the housebreaking count but was the effective sentence for the totality of the offences. Although the offences, in number and magnitude, were about the same as those in this case the appellant's conduct there does not appear to have had the same organisation as the respondent's here. The sentence was described by this Court as at the higher end of the range but was disturbed only to the extent of adding a recommendation for parole after 18 months for a timely plea of guilty and some belated co-operation with the police.

These cases, in our view, show that, were it not for the totality principle and the need to ensure that an initial term of imprisonment imposed on an offender is not so crushing as to destroy his prospects of rehabilitation, the sentence of two years imposed here for these offences would be too low.

For her contention that the overall criminality here should have resulted in a sentence of ten years imprisonment Mrs. Clare relied on Colombo C.A. No. 503 of 1994. The appellant in that case committed a multiplicity of offences in May and August 1993. In May he committed an assault occasioning bodily harm and wilful damage on three occasions. In August he committed burglary on two occasions, stealing on five occasions, dangerous driving on two occasions, housebreaking, attempted arson, arson, serious assault and receiving. Because of personal factors the total effective term of imprisonment for these offences was five years and nine months. However Mrs. Clare relies upon some observations of this Court in that case that, but for mitigating factors, an appropriate effective sentence for this multiplicity of offences would have been in the region of ten years imprisonment. The offence of attempted arson and arson in that case involved an attempted burning and later a burning of a vehicle of one of the Crown witnesses who was to give evidence against the appellant. The appellant had previously made threats to that witness. The assault occasioning bodily harm could have been much more serious. The appellant had threatened to kill the victim, initially by shooting him and then by producing an axe. The dangerous driving charge involved an incident in which the appellant almost ran down a police officer and the serious assault involved an attack on a police officer, fortunately not completed, with a long thin bladed knife. The appellant had a substantial criminal history including for shop breaking, carnal knowledge, assault, robbery in company, breaking and entering with intent, receiving and escaping legal custody, although none of these were recent. Both the criminality involved in that case and the previous criminal history of the appellant were more serious than those of the respondent here. We do not think that that case demonstrates that the total sentence imposed here was manifestly inadequate.

The question in the end is whether, having regard to the factors which we have mentioned, the totality principle and the need to avoid a sentence which will destroy the respondent's prospects of rehabilitation, the total sentence of seven years imprisonment with a recommendation for eligibility for a parole after three years of that term is manifestly inadequate. In our view it is not. Looked at separately either of the sentences might be thought to be too low. And the total sentence is, in our view, low. But when regard is had to the combination of those factors we cannot be satisfied that it is manifestly inadequate.

We would therefore dismiss the appeal.